From Promise to Practice: The Unexecuted Fundamental Right to Information

Access to information constitutes access to justice. The principle underlying the Right to Information is that citizens, as taxpayers, are the owners of public information. The right to information not only boosts transparency, accountability, and the elimination of corruption but also elevates the quality of public service delivery. This crucial right operates as a potent tool, ensuring effective governance by transforming Transparency and Accountability from distant ideals and metaphors into practical achievements.

Under Article 19-A of the Constitution, right to information is a fundamental right of every citizen of Pakistan to have the right to have access to information in all matters of public importance subject to regulation and reasonable restriction imposed by law. A citizen in addition to a government department can also have access to information of a private body which is substantially financed by the government.

Pakistan made history as the pioneer among South Asian nations by introducing the Freedom of Information Ordinance in 2002 at the Federal level. This achievement followed several earlier attempts dating back to 1990.

Years later, the 18th Amendment to the Constitution introduced Article 19-A, enshrining the right to information as a fundamental constitutional right. This landmark step positioned Pakistan alongside countries where the right to information is not just protected by law but is an integral part of the constitution itself.

Over the past decade, there have been noteworthy advancements in jurisprudence within this domain in Pakistan. The country's superior courts have consistently adopted a more liberal interpretation of Article 19-A the superior courts of the country have consistently interpreted Article 19-A in a more liberal way, favoring citizens' rights.

In the well-known Memo-gate case [1] Justice Jawwad S Khawaja made significant remarks about the importance of the right to information in the context of national governance. He observed that:

"It is an unfortunate facet of our history that during the 64 years since Pakistan’s independence in 1947, the people of Pakistan have been, at times, disserved by a non-inclusive governance paradigm where information critical to them has been withheld from them"[2]

In the same judgment, Justice Khawaja emphasized that the essence of democracy lies in informed choices. He elaborated that through these choices, people gain the ability to reward or hold accountable their elected representatives or candidates during elections.

The Honourable judge further defined it as the foundational bedrock of representative democracy and the accountability of the chosen representatives of the people. [3]

In the wake of the 18th Amendment, each province took decisive steps to establish their distinct legislative frameworks concerning the right to information.

The following laws were subsequently introduced by the Provincial Assemblies:

●?????? ?The Khyber Pakhtunkhwa Right to Information Act, 2013

●?????? ?The Punjab Transparency and Right to Information Act, 2013

●?????? ?The Sindh Transparency and Right to Information Act, 2016

●?????? The Right Of Access To Information Act, 2017 (enacted at the federal level)

●?????? The Balochistan Right to Information Act 2021

All of these laws share a key element: an effective means of enforcement established through the institution of Right to Information Commissions. Each commission consists of a chief commissioner and two additional commissioners, each serving a three-year term.

Empowered with the authority resembling that of a civil court, these commissions are entrusted with the responsibility of ensuring timely access to required information for citizens. In cases of non-compliance, they possess the capability to take action against the department's responsible official or information officer. These commissions address citizen complaints concerning denied information, impose penalties on officials violating these laws, and oversee proactive information disclosure by public entities.

The Information Commissions of Khyber Pakhtunkhwa and Punjab are bound to take decisions on filed complaints within a stipulated time frame of 60 days. Conversely, the Sindh Information Commission is similarly bound to adjudicate upon complaints within a prescribed period of 45 days.

Under the Khyber Pakhtunkhwa RTI Act 2013, a delay may incur a fine of up to Rs 25,000, while the Punjab Transparency and RTI Act 2013 allows for a deduction of 2 days' salary per day of delay or a fine up to Rs 50,000. Meanwhile, the Sindh Transparency and RTI Act 2016 permits a fine of 10% of the PIO's basic salary.

On paper, the bags of rules and regulations, legislation and commissions seem perfect - a flawless legal framework. Interestingly, KP's Right to Information law ranks third globally in its effectiveness according to the RTI global ranking.

In practice, an unfortunate reality prevails: a significant portion of citizens are not even aware of the very existence of this right. On the flip side, there are well-informed citizens who actively seek to exercise their fundamental right to access information. But guess what? They're encountering obstacles due to bureaucratic behavior and gaps in the rules that allow government departments to keep things secret and limit public access.

These bodies responsible for upholding the right to information law often seem toothless, as government departments resist providing information despite the existence of such laws. Many requests to access information are still stuck in the pipelines of each provincial commission, as per the last available media report.[4]

Citing this one example to illustrate the intriguing yet unfortunate reality, the very Provincial Assembly that enacted this RTI law is now sidestepping it. Despite numerous attempts, a concerned citizen's inquiry regarding lawmakers' foreign visits remains unanswered.[5] Undoubtedly, there are numerous cases on a daily basis that remain beyond the scope of media coverage.

Based on all the aspects we've explored, it's clear that this situation highlights a shortfall on both the part of the state and civil society. Passing laws alone isn't enough; it's equally crucial to raise awareness and ensure these laws are effectively put into action. Without addressing this gap, the presence of laws alone won't suffice to achieve the desired impact.

Each of the provincial Information Commissions should establish comprehensive mechanisms to effectively monitor and report on the extent to which provincial public entities adhere to the pertinent clauses of their respective Right to Information (RTI) legislations.

Last but not least, it is noteworthy that all these Information Commissions also fall under the purview of public bodies. They are obligated to proactively disclose information in accordance with the provisions outlined in their respective RTI laws as well. How about these commissions sharing information through their websites, serving as role models and setting the bar high?

It doesn't seem like too much to ask for, does it?

References:

[1] CONSTITUTION PETITIONS NO.77 TO 85 & 89 OF 2011 & CMA NO.5505/2011

[2] Justice Jawwad S. Khawaja. (2011). Eloquent note by Justice Jawad S. Khawaja on Right to Information in Memo Gate Case. Retrieved from https://www.cpdi-pakistan.org/wp-content/uploads/2014/11/Eloquent-note-by-JUSTICE-JAWWAD-S.-KHAWAJA-on-Right-to-Information-in-Memo-Gate-Case.pdf

[3] Ibid.

[4] Hafeez Tunio, "Information commission fails to enforce RTI law," The Express Tribune, November 15, 2022, Retrieved from https://tribune.com.pk/story/2386390/information-commission-fails-to-enforce-rti-law.

[5] ibid.